Note: I wrote this post before the Court granted cert in Giles or decided on the petition in Melendez-Diaz. I am providing links to subsequently-filed documents, but otherwise leaving the post substantively unchanged. I will comment on further developments in later posts.
RF
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Currently pending before the Supreme Court are two petitions for certiorari that I hope the Court will grant, because they raise significant issues on which the lower courts are divided. In fact, I have put in amicus briefs in both of them in support of the petitions. The Court has asked for a response from the state in both these cases, suggesting at least that each petition has caught the attention of at least one chambers.
One case is Giles v. California, No. 07-6053, seeking review of People v. Giles, 152 P.3d 433 (Ca. 2007). You can see the petition by clicking here, my amicus brief by clicking here, the state's brief in opposition (without cover) by clicking here, and Giles' reply brief (added since the original posting) by clicking here. Giles presents the issue of whether a purpose to render the witness unavailable is an absolute requirement for forfeiture of the confrontation right. The California Supreme Court thought not, and I agree. I think this is a good case to test the issue, though, and so I submitted my brief in support of the petition even though I basically – note the caveat below – agree with the state supreme court's decision.
Giles is a murder case. It is clear Giles killed the victim. He contends he acted in self-defense. The prosecution introduced a testimonial statement made by the victim (Giles’ former girlfriend) after a prior incident, accusing him of trying to strangle her. The prosecution invoked forfeiture doctrine to overcome the confrontation right, and Giles argued that there was no evidence indicating that he killed the victim for the purpose of rendering her unavailable as a witness. The California Supreme Court held that there is no purpose requirement for forfeiture, at least in the context of forfeiture by serious intentional criminal conduct; I agree. The petition explains why I believe that to be so, why this is an important issue for forfeiture doctrine and confrontation doctrine more generally, and why this is a good type of case in which to address the issue. I will not repeat those arguments here, except to mention two points.
(1) In Hammon v. Indiana, the state and many domestic violence organizations supported a narrow definition of “testimonial” in part on the basis that domestic violence victims are often intimidated from testifying. On behalf of Hammon, I contended that the proper response to this argument was not a narrow definition of “testimonial” but rather a robust doctrine of forfeiture. And Giles is a case in which the Court can start constructing such a definition.
(2) The caveat referred to above is this: I believe that part of forfeiture doctrine must be the principle that the state cannot invoke forfeiture if it did not take reasonable steps available to it to avoid or mitigate the unavailability of the witness for confrontation. This is a complicated issue on which I have commented before. I don’t think the possibility or shape of such a mitigation doctrine is properly presented to the Court in Giles, but I hope that if the Court takes the case it takes care not to dismiss the possibility.
Giles is scheduled for conference on January 11. [The Court granted cert; see subsequent posts.]
The second case is Melendez-Diaz v. Massachusetts, No. 07-591, seeking review of Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. 2007), an unpublished decision that follows Commonwealth v. Verde, 827 N.E.2d 701 (Ma. 2005). You can see the petition by clicking here, my amicus brief by clicking here, the amicus brief filed by three other law professors and several defense organizations by clicking here, the Commonwealth's brief in opposition by clicking here, and the petitioner's reply brief in support of the petition by clicking here. This one is much simpler: Massachusetts is among the states holding that forensic lab reports are not testimonial. I think this is plainly wrong, and the Supreme Court should resolve the conflict quickly. This is an important theoretical matter, because there is no sound theory of what “testimonial” means under which lab reports are not testimonial. And it is an important practical issue because of the many thousands of cases involving lab reports each year. I think courts holding these reports to be non-testimonial are motivated largely by faith in the reliability of these reports – faith that in some cases is misplaced and in any event is inapposite under Crawford – and by concern about the costs of requiring the authors to testify subject to confrontation. I believe those costs could be significantly reduced by providing for depositions of the authors.
The Commonwealth's response in this case was filed on February 6. If the Court does take the case, it would not be heard until the 2008 term.
14 comments:
Krasky has also been sent back to the sate for response. That's a case out of Minnesota where state Supreme Court held that child statements to forensic social worker were non-testimonial. Response date for Minnesota is Dec. 21.
Thank you for calling that to my attention. I posted a long message discussing Krasky on Sept. 7. Unless I am missing something, the Supreme Court does not appear to have jurisdiction; the decision of the state supreme court to send the case back for trial was not a final judgment.
If a purpose to render the witness unavailable is not required, why did the Court state in Davis that FRE 804(b)(6) "codifies" the forfeiture doctrine?
FRE 804(b)(6) is indeed a codification of forfeiture doctrine. But of course it only purports to govern when forfeiture takes a statement around the hearsay bar. It does not purport to be an expression of constitutional forfeiture doctrine, and it could not very well be a useful one, especially given that it was promulgated well before Crawford. Davis did not involve a forfeiture issue, and though some of the briefs (including mine) referred to forfeiture there was no substantial discussion of the details of the doctrine. The Court included dicta on forfeiture to explain -- correctly -- that applying that doctrine rather than an artificially narrow definition of "testimonial" is the proper way to address the problem of intimidation. I think the discussion is clear that it is not meant to limit the Court in future cases in crafting a sound constitutional doctrine of forfeiture.
Do you agree with respondent's contention, in their brief in opposition to cert. (i.e., their "forfeiture by murder" argument), that in all cases of intentional murder their is no Confrontation Clause bar to the admission of the victim's hearsay statements?
Assume for purpose of this question that the victim died shortly after the fatal blow was struck, so that the State did not have time to arrange for a deposition.
I'm always hesitant about answering a question that covers "all cases." The questioner himself or herself (Contributors, please identify yourselves if you can!) introduces one important qualification: If the victim lingers sufficiently after the fatal blow that a deposition could reasonably have been arranged, then I believe the prosecution should not be allowed to invoke forfeiture doctrine if it did not act reasonably to arrange one. Obviously, there is considerable open texture in that standard.
Putting that situation aside, as the questioner asks me to do, I think there is an interesting issue in a case like Giles, though not an issue the Court should resolve at this point, even if it does take the case: The testimonial statement at issue was an accusation of a violent assault made by the victim before the fatal blow, in connection with a prior incident. Should the prosecution be held accountable for failure to take a deposition shortly after the earlier incident? I believe that prosecutors should take far more depositions than they do to preserve testimony -- especially in the context of domestic violence, where witnesses so often fail, for one reason or another, to testify at trial in accordance with their prior statements. And the fact that this failure is so predictable strengthens the argument in this context that the prosecution ought to be held accountable for failure to take a deposition.
Presumably cost is one reason why they do not do so. On the other hand, it could be that depositions would avoid some trials and limit trial costs. More significantly, perhaps, I suspect that legislatures would allocate more funds for this purpose if prosecutors were able to tell them, "We're going to lose some murder prosecutions, as well as many domestic violence prosecutions, if we don't take prompt depositions of victims, especially domestic violence victims, who make accusations."
Now, putting aside that situation as well, I can't think of another in which a defendant who commits intentional murder (I'm not a criminal lawyer, but I mean by adopting that locution from the questioner to be avoiding the question of felony murder)should not be held to have forfeited the right to confront the victim.
The New Jersey Supreme Court presently has 4 cases scheduled for oral argument. One, State v Richard F. Berezansky, docket # 59,857, deals specifically with the admission of State Police Forensic Blood Analysis in DWI cases. Oral argument is scheduled for Feb 5, 2008.
Berezansky's conviction for DWI, based solely upon a blood analysis certificate from the NJ State Police Lab,was reversed on appeal by the Appellate Division. 386 N.J.Super. 457 (App.Div. 2006), certif. granted 191 N.J.317 (2007). Interestingly, the State did not seek certification; defendant sought it, arguing that the remand for a new trial, under the circumstances of this particular case, would violate double jeopardy and due process protections of the US and NJ Constitutions.
Even the amicus brief filed by the State Attorney General did not argue that a State Police lab certificate is not "testimonial". The brief impliedly admitted that the Appellate Division was correct in reversing the conviction on confrontation grounds, and suggested methods for practically dealing with the production of Lab chemists.
The NJ Supreme Court had already held such certificates were inadmissable without the right to confront the lab chemist, in State v Simbara, 175 NJ 37 (2002), pre-Crawford.
Hope this information is helpful. Thank you for creating and maintaining this blog.
Stanley F. Rizzolo, Esq., attorney for Richard F. Berezansky
Prof. Friedman, take the following scenario:
OJ beats Nicole. Nicole calls the police. Nicole provides a testimonial statement to the police -- telling them that OJ said, "If I ever see you with another man I will kill both of you!"
Two weeks later, OJ is charged with the beating and pleads guilty.
Three months later, OJ spots Nicole with another man entering her apartment. OJ murders both.
Under your concept of forfeiture Nicole's highly relevant, testimonial statement would be inadmissible, because the prosecution didn't take Nicole's deposition?
The Court has said forfeiture is a doctrine based upon "equity." Where is the equity under your rule? Equity often speaks in terms of "unclean hands." Are you arguing that the prosecutor's are dirtier than OJ's, because a depo wasn't held?
Important question. I have posted a main entry addressing it: http://confrontationright.blogspot.com/2007/12/duty-to-mitigate-with-respect-to.html
NJ Supreme Court oral argument on 5 confrontation clause/Crawford cases scheduled for 2-5-8 at 10 am
copy and paste link below to view webcast http://www.judiciary.state.nj.us/webcast/index.htm
Stanley Rizzolo
In addition to melendez-Diaz, the question of the introduction of "certificates" to prove the results of forensic tests is raised in No. 07-7577, O'Maley v. New Hampshire, in which the state proved both the method of blood collection through a written statement signed by the person who drew the blood and the results of a blood alcohol test through the testimony of a person other than the one who performed the analysis. A response was requested from the state in December and filed in January and the petition was distributed for the conference of February 15th. It seems likely that this issue is coming to a head. I am sure that there are a number of other petitions pending. (I expect to be filing one in a few months - unless, of course, the Massachusetts Supreme Judicial Court reverse Verde.)
Richard Klibaner
klibaner@sprintmail.com
No. 07-7770, Geier, Petitioner v. California was also distributed for the 2/15 conference. This is the case in which the state argued (and the court accepted) that a report of DNA results was not testimonial because the declarant was reporting was he was observing at the time he made the report, rather than past events. (One of the arguments made in the opposition in Melendez-Diaz.) This is about the most curious definition of nontestimonial which I have encountered. It suggests, for instance, that if a police officer tape records what he observes as he searches a suspect, that recording could be used instead of his testimony at trial.
Richard Klibaner
State v Berezansky decision upheld by the NJ Supreme Court. On remand, the charges were dismissed.
Stanley Rizzolo
Quite useful material, thanks so much for the post.
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